Ah v Dawon [2013] PGNC 27; N5091 (4 March 2013)

N5091

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 555 OF 2012

ELIA AH ON HIS BEHALF AND BIO CLAN OF WAFEN VILLAGE
Plaintiff

V

ADAUG DAWON AND OTHER MEMBERS OF GALOLO CLAN OF WAGUK VILLAGE
Defendant

Madang: Cannings J
2013: 22 February, 4 March

CUSTOMARY LAND – dispute as to use of land – interpretation and application of Land Titles Commission determination – whether National Court has jurisdiction – whether such dispute should be referred to mediation – relevance of Land Disputes Settlement Act

A dispute arose between the plaintiff's clan and the defendant's clan concerning portions of customary land, which the plaintiff claims are owned exclusively by his clan. The plaintiff commenced proceedings in the National Court seeking a permanent injunction to restrain the defendant and his clan, who have been living on the land for many years, from interfering with the plaintiff's use of the land and from harassing and threatening violence against members of the plaintiff's clan. The plaintiff's clan claims exclusive ownership by virtue of a Land Titles Commission decision of 1965 which declared that the land was jointly owned by all the male members of a particular land owning group. The plaintiff claims that his clan was the only clan recognised by the Commission as the land owning group. The defendant says, however, that his clan is a member of the land owning group, along with the plaintiff's clan and another clan. The defendant wants to dispute the correctness of the 1965 decision but says that even if it is correct his clan must be recognised as a member of the land owning group and therefore the application for an injunction has no basis. Both the plaintiff and the defendant presumed that the National Court had jurisdiction to determine the existing dispute.

Held:

(1) The National Court has no jurisdiction to determine ownership of customary land. But, here, it was not being asked to determine ownership as that question had been determined in the 1965 proceedings of the Land Titles Commission; it was being asked to interpret, apply and enforce an earlier quasi-judicial decision and it had jurisdiction to do so.

(2) There was insufficient evidence before the Court to determine finally the application for a permanent injunction but rather than dismiss the proceedings or require the parties to adduce further and better evidence the dispute was referred to mediation before an accredited mediator.

Cases cited

The following cases are cited in the judgment:

Galem Falide v Registrar of Titles (2012) N4775
Lavu v Thompson & NBPOL (2007) N5018
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8
Siaman Riri v Simion Nusai (1995) N1375
Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990]
Soso Tomu v The State (2002) N2190
Tender Wak v John Wia (2008) N3356
The State v Lohia Sisia [1987] PNGLR 102
Victor Golpak v Patrick Alongrea Kali [1993] PNGLR 491

Counsel

B Meten, for the plaintiff
A Dawon, the defendant, in person

4 March, 2013

1. CANNINGS J: This case is about various pieces of customary land to the south of Madang town, in the Talim area. The plaintiff Elia Ah and his clan, Bio Clan of Wafen village, have been living on the land and growing crops and food gardens on it for generations, as have the defendant Adaug Dawon and his clan, Galolo Clan of Waguk village. The two clans have been in conflict over ownership and use of the land for 30 years sometimes resulting in physical confrontation between members of the clans. In 2012 the plaintiff commenced the present proceedings by originating summons seeking a permanent injunction to restrain the defendant and his clan from interfering with the plaintiff's use of the land and from harassing and threatening violence against members of the plaintiff's clan.

2. The plaintiff's clan claims exclusive ownership by virtue of a Land Titles Commission decision of 4 June 1965 which declared that the land was jointly owned by all the male members of a particular land owning group. The plaintiff claims that his clan was the only clan recognised by the Commission of the land owning group. The defendant says, however, that his clan is also a member of the land owning group, along with the plaintiff's clan and another clan. The defendant wants to dispute the correctness of the 1965 decision but says that even if it is correct his clan must be recognised as a member of the land owning group and therefore the application for an injunction has no basis.

3. The first question that must be addressed is whether the National Court has jurisdiction to determine the plaintiff's application. If it does, the next questions will be whether the plaintiff has proven that his clan are the exclusive owners of the land and if they are whether the permanent injunction that he seeks should be granted and whether the defendant and his clan should be permanently restrained from harassing the plaintiff's clan.

JURISDICTION

4. Neither the plaintiff nor the defendant raised the issue of this Court's jurisdiction but as the case concerns customary land it is important that I verify that I have jurisdiction (ie power to determine the dispute) before proceeding further. The National Court must tread warily when dealing with customary land. In The State v Lohia Sisia [1987] PNGLR 102 the Supreme Court ruled the National Court has no original jurisdiction to hear or determine competing claims to ownership of customary land. The general principle is that such disputes must be determined by the Land Titles Commission under the Land Titles Commission Act or by Local and Provincial Land Courts under the Land Disputes Settlement Act. In a number of customary land cases the National Court has relied on this principle when ruling that it had no jurisdiction matters (Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990], Victor Golpak v Patrick Alongrea Kali [1993] PNGLR 491, Siaman Riri v Simion Nusai (1995) N1375, Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8, Soso Tomu v The State (2002) N2190, Lavu v Thompson & NBPOL (2007) N5018, Tender Wak v John Wia (2008) N3356).

5. However as I indicated in Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291 and Galem Falide v Registrar of Titles (2012) N4775 a distinction must be drawn between cases in which there is a dispute about competing claims to ownership of customary land and cases in which the dispute centres on interpretation or application of a previous judicial or quasi-judicial decision as to customary ownership. Only in the former category of cases does the National Court lack jurisdiction. If a case falls into the latter category the National Court has jurisdiction. I consider that the present case falls into the latter category as the dispute between clans, which has been continuing for at least 30 years, is focussed on the meaning and effect of a decision of the Land Titles Commission of 1965. I am satisfied that the National Court has jurisdiction.

HAS THE PLAINTIFF PROVEN THAT HIS CLAN HAS EXCLUSIVE OWNERSHIP?

6. To appreciate the plaintiff's case it is necessary to look at the context in which the Land Titles Commission, constituted by Commissioner J B Page, made the decision in 1965 and the terms of the decision. The 1965 proceedings emanated from a claim by Tomidal Moduas of Oiyahu Group of Waguk village who claimed ownership of 15 portions of customary land of an area of approximately 174 acres (70.4 hectares) a little south of Danben, known as Talim and other pieces, namely Awa, Bahana, Bambeniar, Dadbire, Nu'nuniana, Silalim, Te'e'na'hen, Tol'tol'na, U'hin, W'be'bela, Wama'ut, Wasuhal and Yelguma. Those portions of customary land are the same land that is at the centre of the present proceedings. Mr Moduas was referred to as the plaintiff and the person opposing the claim, Ah Mal (an ancestor of the present plaintiff Elia Ah) of the Bio land-owning group, was referred to as the defendant. Interestingly there was no reference to 'clans', rather the disputing parties were referred to as 'groups'. Commissioner Page used some terminology from the local language, eg a land-owning group is a Yobon Mede and the leader of a group is called the Mahai'ilo. The Commissioner declared that:

The land is jointly owned by all the male members of the land-owning group (Yobon Mede) known as Bio. The members of this group are the patrilineal descendants of two male ancestors Mal and Ban plus any adopted persons and their patrilineal descendants. Adoption into the group can only take place when the adoptee is still an infant, that is before weening. The adopted person becomes a full member of his new group and relinquishes all rights to the land of the group of his natural father. The leader of the group is known as the Mahai'ilo and the present Mahai'ilo of this land is Ah Ma. Absence from the land does not terminate a member's interest in the land. None of the land can be disposed of without the permission of all adult male members of the Yobon Mede.

7. The dispute was thus determined in favour of the Bio land-owning group over the Oiyahu group. The plaintiff in the present proceedings Mr Ah claims that that decision is sufficient proof that the male members of Bio clan, of which he is the present Mahai'ilo, are the exclusive owners of the land. No other clan is in that position. The clan of the defendant in the present proceedings, Galolo clan, was not mentioned in the 1965 decision and its members have no ownership rights over the land, nor do they have any right to live on the land or use it for any purpose without the permission of the Bio clan.

8. The defendant Mr Dawon sees the 1965 decision differently. He says that although Galolo clan was not expressly referred to, Commissioner Page remarked that one of the most reliable witnesses was Ah Sakel (an ancestor of Mr Dawon of Galolo clan) who was regarded by the Commissioner as a member of the Bio land-owning group. The Commissioner stated in his written decision that:

The witnesses for the defendant (Bio group) have all given evidence of either occupation or usage by various Bio people for various periods extending back to before the arrival of the Germans. The witness Ah Sakel, who states he was about ten years old in German days, has given evidence that he saw Fala and Mal Ah both of the Bio group using this land in German times; and states further that he and another Bio man Yeigol Ban have gardened on pieces of this land continuously since before the Japanese war. The later part of this evidence is substantiated by Yeigol Ban and the witnesses Liwa Kolau of Asgeniol and Iwa Faile of Keup.

9. This passage seems to lend support to the defendant's fundamental proposition: that the Bio land-owning group does not consist of only Bio clan, in fact it consists of three clans, Bio, Galolo and one other, Lu'ume. The defendant also asserts that those three clans own certain sub-portions of the land that is the subject of the present case and he points to an important qualification that Commissioner Page made to his main declaration as to ownership. The qualification was:

This decision does not deal with, dispose of or decide to be non-existent specified interests of individual members of the group herein mentioned or of other individuals or groups, which interests are in the nature of subservient tenements to the dominant tenements declared in this Decision.

10. I can see that there might be merit in the defendant's arguments. On the other hand I can see the logic in the plaintiff's case: the 1965 decision declared that the Bio land-owning group owned the land, so it follows, there being no mention of other clans having ownership rights, that adult male members of Bio clan are the owners of the land. The difficulty I face is that there is not enough evidence before the court to decide these issues. What should the court do? One option would be to order further and better evidence. Another would be to dismiss the proceedings on the basis that the plaintiff has not proved his case. I don't think that it would be a good idea as it would leave the dispute between the clans unresolved with no clear way forward as to how it should be resolved. Courts exist not only to hear and resolve disputes but also to help parties resolve disputes themselves. A better approach would be to order mediation.

11. Under Section 7B(2) of the National Court Act and Rule 5(2) of the ADR Rules the National Court can at any stage of a case order mediation for a resolution of any part of any proceedings provided that at the time of considering whether to order mediation it has regard to the factors prescribed by Rule 5(3). I have had regard to those matters. I consider that: (a) mediation will not result in prejudice to the rights of either party; (b) it is reasonably within the ability and power of both parties to comply with a mediation order; (c) mediation will not entail substantial work for either party; (d) the nature of the relief sought lends itself to mediation; (e) a mediation at Madang can be set up soon and this should be convenient to both parties; (f) neither party has expressed opposition to the prospect of mediation; (g) mediation has not yet been attempted and it should be attempted at least once before consideration is given to setting down further proceedings or perhaps referring the matter to the Land Titles Commission; (h) neither party loses the right to have the remaining claims tried in court; and (i) it is in the interests of justice to attempt mediation as a method of resolving disputes such as this.

12. It might happen that once this matter is referred to an accredited mediator the parties might, if they cannot agree on what rights they each possess over the land, nonetheless be able to agree on an orderly and peaceful method of finally resolving the matter such as referring the matter to the Land Titles Commission or to the Provincial Land Disputes Settlement Committee. Perhaps they could agree that the matter should come back into the National Court for further and better evidence.

CONCLUSION

13. This is a case about how a 1965 decision of the Land Titles Commission should be interpreted, applied and enforced. The National Court has jurisdiction but not enough evidence at this stage make a final decision. The best thing to do is order mediation. If the mediation fails the matter can return to the National Court for further adjudication. In the meantime I will make orders to preserve the status quo and ensure that the parties resolve the matter in a peaceful, respectful and orderly way.

ORDER

(1) The originating summons shall under Section 7B(2) of the National Court Act and Rule 5(2) of the ADR Rules, on the court's own motion, be referred for mediation pursuant to a separate mediation order under Rule 5(4) of the ADR Rules.

(2) Until final determination of these proceedings the status quo shall be preserved and accordingly:

• (a) members of the plaintiff's and defendant's clans shall continue residing on the lands on which they have been residing for a number of years and shall continue growing crops and food gardens on those lands without interference from the other clan;
  
• (b) neither clan shall engage in any substantial infrastructure project or any significant land clearing project without the leave of the National Court;
  
• (c) members of each clan shall respect the members of the other clan and not engage in any fights or harassment or threats and shall let the law take its course.
  

(3) Members of each clan shall cooperate with and respect the Mediator appointed to deal with this case.

(4) Breach of any of these orders will be regarded as contempt of court and any person who fails to adhere to these orders will be arrested, charged with contempt and remanded in custody pending determination of the charge and if found guilty subject to a term of imprisonment.

(5) The parties shall bear their own costs of the proceedings to date.

Judgment accordingly.
_________________________________
Meten Lawyers: Lawyers for the Plaintiff